A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new chapter, designated §5I-1-1, §5I-1-2,
§5I-1-3, §5I-1-4, §5I-1-5 and §5I-1-6, all relating to
creating the West Virginia Buy American Act; requiring any
public agency construction contracts for public buildings or
public works which utilize state grants or state loans in part
to finance all or part of the construction costs to contain a
provision requiring that the iron, steel, manufactured goods,
coal and timber used or supplied for the project be
manufactured or produced in the United States; permitting
waivers; waivers and exemptions; providing remedies for
intentional violations; defining terms; making findings; and
declaring policy.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new chapter, designated §5I-1-1, §5I-1-2, §5I-1-3, §5I-1-4, §5I-1-5 and §5I-1-6, all to read as follows:

CHAPTER 5I. WEST VIRGINIA BUY AMERICAN ACT.

ARTICLE 1. WEST VIRGINIA BUY AMERICAN.

§5I-1-1. Short title.

This act may be cited as the “West Virginia Buy American Act.”

§5I-1-2. Findings and declaration of policy.

(a) Findings. -- The Legislature finds that:

(1) The production of iron, steel, manufactured goods, coal
and timber provides jobs and family income to many individuals in
this state and, in turn, the jobs and family incomes of millions of
persons in the United States;

(2) The taxes paid to the state and its political subdivisions
by employers and employees engaged in the production and sale of
iron, steel, manufactured goods, coal and timber are a large source
of public revenues for West Virginia;

(3) The economy and general welfare of West Virginia and its
people and the economy and general welfare of the United States are
inseparably linked to the preservation and development of
manufacturing, harvesting and mineral extraction industries in this
state, as well as all the other states of the nation;

(4) The state’s taxpayer dollars are better spent if
reinvested with its individual and employer taxpayers in order to
foster job retention and growth, particularly within the
manufacturing, harvesting and mineral extraction sectors, and to
ensure a broad and healthy tax base for future investments vital to
the state’s infrastructure; and

(5) West Virginia’s procurement policies should reflect the
state’s and the nation’s principles ensuring that the products of
those companies and workers who abide by our workplace safety and
environmental laws and regulations should be rewarded with a
commonsense preference in government contracting.

(b) Declaration of policy. -- It is the policy of West
Virginia that all public officials and agencies should aid and
promote the economy of the state and the United States by requiring
a preference for the procurement of iron, steel, manufactured
goods, coal and timber produced in the United States in all
contracts for the construction, reconstruction, repair, improvement
or maintenance of public works.

§5I-1-3. Use of American materials.

(a) Notwithstanding any other provision of law, each contract
for the construction, reconstruction, alteration, repair,
improvement or maintenance of a public building or public works
made by a public agency which is funded in part by state grants,
state loans or state appropriations shall contain a provision that
the iron, steel, manufactured goods, coal and timber used or
supplied as construction materials in the performance of the
contract or any subcontract thereto shall be manufactured or
produced in the United States.

(b) The contractor shall use only domestic construction
material in performing the contract, unless one of the exceptions
set forth in subsection (c) of this section applies.

(c) The application of the preference is not required if the
State or the public agency determines one or more of the following:

(1) The cost of domestic construction material would be
unreasonable:

(A) The cost of domestic iron, steel, or other manufactured
goods used as construction material is unreasonable when the
cumulative cost of such material will increase the cost of the
contract by more than twenty-five percent;

(B) The cost of unmanufactured construction material is
unreasonable when the cost of such material exceeds the cost of
foreign material by more than six percent;

(2) The construction material is not mined, produced or
manufactured in the United States in sufficient and reasonably
available quantities or of a satisfactory quality; or

(3) The application of the provisions of the West Virginia Buy
American Act to a particular construction material would be
inconsistent with the public interest.

§5I-1-4. Waiver or exemption request; procedures.

(a) If any contractor seeks a waiver or an exemption from the
requirements of the West Virginia Buy American Act, or seeks to use
foreign construction material on a project, it shall seek the
waiver or exemption from the public agency administering the
contract.

(b)(1) Any waiver or exemption request submitted by a
contractor shall include adequate information for the state or the
public agency to evaluate the request, including:

(A) A description of the foreign and domestic construction
materials;

(B) Unit of measure;

(C) Quantity;

(D) Cost;

(E) Time of delivery or availability;

(F) Location of the construction project;

(G) Name and address of the proposed supplier; and

(H) A detailed justification of the reason for use of foreign
construction materials.

(2) A request based on unreasonable cost must be accompanied
by a reasonable survey of the market and a completed cost
comparison table, illustrating the calculation of comparative costs
of using the foreign construction material and using the domestic
construction material on the project.

(3) The cost of construction material shall include all
delivery costs to the construction site and any applicable duty.

(4) Any contractor request for a waiver or exemption submitted
after contract award shall explain why the contractor could not
reasonably foresee the need for such determination and could not
have requested the waiver or exemption before the contract award.
If the contractor does not submit a satisfactory explanation, the
request may be summarily denied by the public agency.

(c) If the public agency determines after contract award that
an exception to the West Virginia Buy America Act applies, the
state or public construction contract may be modified to allow for
the use of the foreign construction material. However, when the
basis for the waiver or exemption is the unreasonable cost of a
domestic construction material, the cost difference may not be less
than one or more of the differentials established in paragraphs (A)
and (B), subdivision (1), subsection (c), section three of this
article.

(d) Unless the public agency determines that an exception
applies, use of foreign construction material on a project subject
to the provisions of this article to be noncompliant and in
violation of this article.

(e) Whenever a public agency grants a waiver or exemption to
the requirement to use domestic construction materials on a project
that is subject to this article, it shall:

(1) Publish in the State Register a detailed written
justification as to why the waiver or exemption was granted; and

(2) Receive comments and information on the granted waiver or
exemption.

(f) If the public agency finds after notice and comment that
the information supplied by the contractor in support of the waiver
or exemption request was inaccurate or misleading, it may rescind
the granted waiver or exemption.

§5I-1-5. Violations and limitations; related penalties.

(a) Intentional Violations. -- A person shall be ineligible to
receive any contract or subcontract with this state or any
political subdivision if a court or federal or state agency
determines that any person intentionally:

(1) Affixed a label bearing a “Made in America” or “Produced
in America” inscription, or any inscription with the same meaning,
to any product used in projects to which this section applies, sold
in or shipped to the United States that was not made or produced in
the United States; or

(2) Represented that any product used in projects to which
this section applies, sold in or shipped to the United States that
was not produced in the United States, was produced in the United
States.

(b) Limitation on Applicability of Waivers or Exemptions to
Products Produced in Certain Foreign Countries. -- Notwithstanding
any other provision of this article to the contrary, waivers or
exemptions may not be granted for products produced in a foreign
country if the State of West Virginia or a public agency, in
consultation with the United States Trade Representative,
determines that:

(1) The foreign country is a party to a trade agreement with
the United States; and

(2) The United States has determined that the foreign country
has violated the terms of the trade agreement it has with the
United States by discriminating against products covered by this
section that are produced in the United States and are covered by
the agreement.

§5I-1-6. Definitions.

As used in this chapter, the following terms have the meanings
ascribed to them in this section, unless the context in which the
term is used clearly requires another meaning:

(1) “Construction material” means an article, material or
supply brought to the construction site by the contractor or a
subcontractor for incorporation into the building or work. The
terms also includes an item brought to the site preassembled from
articles, materials or supplies. However, emergency life safety
systems, such as emergency lighting, fire alarm and audio
evacuation systems, that are discrete systems incorporated into a
public building or work and that are produced as complete systems,
are evaluated as a single and distinct construction material
regardless or when or how the individual parts or components of
those systems are delivered to the construction site. Materials
purchased directly by the public agency are supplies, not
construction material.

(2) “Domestic construction material” means:

(A) An unmanufactured construction material mined or produced
in the United States; or

(A) In the case of an iron or steel product all manufacturing
must take place in the United States, except metallurgical
processes involving the refinement of steel additives; or(B) In the
case of a manufactured good, a good will be considered manufactured
in the United States if:

(i) All the manufacturing processes for the product take place
in the United States; and

(ii) All of the components of the product are of United States
origin. A component will be considered of a product of United
States origin if all the manufacturing processes take place in the
United States, regardless of the origin of its subcomponents.

(6) “Public agency” or “agency” means the State of West
Virginia, its departments, agencies, boards, commissions, and
institutions, and all units and political subdivisions, including
local school districts.

(7) “Public buildings” and “public works” mean any structure,
building, highway, waterway, street, bridge, transit system,
airport or other betterment, work or improvement whether of a
permanent or temporary nature and whether for governmental or
proprietary use. The term includes, but is not limited to, any
railway, street railway, subway, elevated and monorail passenger or
passenger and rail rolling stock, self-propelled cars, gallery
cars, locomotives, passenger buses, wires, poles and equipment for
electrification of a transit system, rails, tracks, roadbeds, guide
ways, elevated structures, buildings, schools, hospitals, stations,
terminals, docks, shelters and repairs to any of the foregoing.

(8) “Steel” means an alloy that includes at least 50 percent
iron, between 0.02 and 2.00 percent carbon, and may include other
elements.

(9) “United States” means all fifty states of the United
States, the District of Columbia, and all territories of the United
States.

(10) “Unmanufactured construction material” means raw material
brought to the construction site for incorporation into the
building or work that has not been:

(A) Processed into a specific form and shape; or

(B) Combined with other raw material to create a material that
has different properties than the properties of the individual raw
materials.